Document

i.a base prospectus to be filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”), relating to the registration for issue and sale by the Company, from time to time pursuant to Rule 415 of the General Rules and Regulations of the Commission promulgated under the Act, of up to $150,000,000 maximum aggregate offering price consisting of an indeterminate number of (a) shares of the common stock of the Company, par value $0.0001 per share (“Common Stock”), (b) shares of one or more series of the preferred stock of the Company, par value $0.0001 per share (“Preferred Stock”), (c) one or more series of the debt securities of the Company (collectively, “Debt Securities”), each to be issued under an indenture to be entered into between the Company, as issuer, and a trustee to be selected by the Company, in the form attached as Exhibit 4.9 to the Registration Statement, as such indenture may be amended or supplemented from time to time (each, an “Indenture”), (d) warrants to purchase Common Stock, Preferred Stock or Debt Securities (“Shelf Warrants”) pursuant to one or more warrant agreements (each, a “Warrant Agreement”), and (e) units comprised of Common Stock, Preferred Stock, Debt Securities and Warrants in any combination (the “Units”),

ii.a warrant exercise prospectus (the “Warrant Exercise Prospectus”) to be filed with the Commission under the Act relating to the registration for issue and sale by the Company of (a) shares of Common Stock underlying outstanding warrants of the Company, issued with an exercise price of $3.00, (b) shares of Common Stock underlying outstanding warrants of the Company, issued with an exercise price of $3.750, and (c) shares of Common Stock underlying outstanding warrants of the Company, issued with an exercise price of $5.375 (collectively, the “Outstanding Warrants”), and currently registered on a Registration Statement on Form S-3 filed with the Commission under the Act and declared effective on April 10, 2020 (the “Prior Registration Statement”) (the shares of Common Stock to be issued upon exercise of the Outstanding Warrants, the “Warrant Exercise Shares”), and

iii.a prospectus (the “Aspire Prospectus”) to be filed with the Commission under the Act relating to the registration for issue and sale by the Company of shares of Common Stock (the “Aspire Shares”) having aggregate sale proceeds of up to $12,005,300 that may be sold by the Company pursuant to that certain Common Stock Purchase Agreement, dated as of July 21, 2020 (the “Aspire Purchase Agreement”), by and between the Company and Aspire Capital Fund, LLC.

We have examined the Registration Statement, the Restated Certificate of Incorporation of the Company (the “Certificate of Incorporation”), the Amended and Restated Bylaws of the Company (the “Bylaws”), and such other documents and matters of law and fact as we, in our professional judgment, have deemed appropriate to render the opinions contained herein. In our examination, we have assumed the legal capacity of natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conforming to originals of all documents submitted to us as certified copies or photocopies, and the authenticity of originals of such latter documents. We call to your attention the fact that as a matter of customary practice, certain assumptions underlying opinions are understood to be implicit. With respect to certain facts, we have considered it appropriate to rely upon certificates or other comparable documents of public officials and officers or other appropriate representatives of the Company, without investigation or analysis of any underlying data contained therein.

(1)Immediately prior to the issuance of any shares of Common Stock or Securities convertible into or exercisable for, or that are comprised of, Common Stock, the Company will have available for issuance, under the Certificate of Incorporation, a sufficient number of authorized but unissued shares of Common Stock as is necessary to provide for such issuance, conversion or exercise.

(2)Immediately prior to the issuance of any shares of Preferred Stock or Securities convertible into or exercisable for, or that are comprised of, Preferred Stock, the Company will have available for issuance, under the Certificate of Incorporation, a sufficient number of authorized but unissued shares of Preferred Stock as is necessary to provide for such issuance, conversion or exercise.

(3)Prior to the issuance of any Securities (including upon conversion or exercise of any other Security in accordance with the terms of such Security), the Board of Directors of the Company (the “Board”) will have taken or caused to be taken all necessary corporate action to approve the issuance of and the terms of such Securities, the offering of such Securities and related matters, including, with respect to any shares of Common Stock or series of Preferred Stock, the consideration therefor (not less than par value), and with respect to any series of Preferred Stock, the designation of the relative rights, preferences and limitations of such Preferred Stock.

(4)Each issuance of Securities (including any issuance upon conversion or exercise of any other Security in accordance with the terms of such Security) and the terms of such Securities will comply with the Certificate of Incorporation, the Bylaws, the corporate action approving such issuance, applicable law, all instruments binding on the Company and any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company.

(8)If applicable, a definitive purchase, underwriting or similar agreement with respect to any Securities to be issued (a “Purchase Agreement”) will have been duly authorized by all necessary corporate action of the Company and validly executed and delivered by the Company and the other parties thereto, and the Securities will be sold in accordance with the provisions of such Purchase Agreement.

In rendering the opinion set forth in paragraphs 6 and 7 below, we express no opinion to the extent that, notwithstanding its current reservation of shares of Common Stock, future issuances of securities of the Company and/or anti-dilution adjustments to outstanding securities of the Company may cause outstanding securities to be exercisable or convertible for more shares of Common Stock than the number that remain authorized but unissued.

In rendering the opinion set forth in paragraph 6 below, we have assumed the exercise price of Outstanding Warrants will not be adjusted to an amount below the par value per share of Common Stock. Further, we have assumed that no fractional shares or scrip representing fractional shares shall be issued upon exercise of the Outstanding Warrants, and as to any fraction of a share which the holder of the Outstanding Warrant would otherwise be entitled to purchase upon such exercise, the Company will elect to pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the exercise price of the Outstanding Warrant.

1.With respect to any shares of Common Stock to be issued by the Company, (i) when the Company receives payment of the consideration approved by the Board and as specified in any applicable Purchase Agreement for such shares of Common Stock and (ii) upon either (a) the countersigning of the certificate representing such shares of Common Stock by a duly authorized signatory of the Company’s

2.With respect to any shares of any series of Preferred Stock to be issued by the Company, (i) when the Company has properly adopted, and filed with the Secretary of State of the State of Delaware, a Certificate of Designation relating to such series of Preferred Stock, (ii) when the Company receives payment of the consideration approved by the Board and as specified in any applicable Purchase Agreement for such shares of Preferred Stock, and (iii) upon either (a) the countersigning of the certificate representing such shares of Preferred Stock by a duly authorized signatory of the Company’s registrar for the Preferred Stock or (b) the book entry of such shares by the transfer agent for the Preferred Stock, such shares of Preferred Stock will be validly issued, fully paid and nonassessable.

3.With respect to any Debt Securities to be issued by the Company, when (i) the applicable Indenture has been (a) duly authorized, executed and delivered by each party thereto and (b) duly qualified under the Trust Indenture Act of 1939, as amended, (ii) such Debt Securities have been duly executed, authenticated and delivered in accordance with the terms of the applicable Indenture, and (iii) the Company receives payment of the consideration approved by the Board and as specified in any applicable Purchase Agreement for such Debt Securities, such Debt Securities will constitute valid and binding obligations of the Company.

4.With respect to any Shelf Warrants to be issued by the Company, when (i) the applicable Warrant Agreement has been duly authorized, executed and delivered by each party thereto, (ii) such Shelf Warrants have been issued in accordance with the terms of the applicable Warrant Agreement, and (iii) the Company receives payment of the consideration approved by the Board and as specified in the applicable Warrant Agreement and any applicable Purchase Agreement for such Shelf Warrants, such Shelf Warrants will constitute valid and binding obligations of the Company.

5.With respect to any Units to be issued by the Company, when (i) any applicable Unit Agreement has been duly authorized, executed and delivered by each party thereto, (ii) such Units have been issued in accordance with the terms of the applicable Unit Agreement, and (iii) the Company receives payment of the consideration approved by the Board and as specified in the applicable Unit Agreement and any applicable Purchase Agreement for such Units, such Units will constitute valid and binding obligations of the Company.

6.With respect to the Warrant Exercise Shares, (i) when issued and paid for in accordance with the Outstanding Warrants and as provided in the Warrant Exercise Prospectus and (ii) upon either (a) the countersigning of the certificate representing the shares of Common Stock by a duly authorized signatory of the Company’s registrar for Common Stock or (b) the book entry of such shares by the transfer agent for the Common Stock, the Warrant Exercise Shares will be validly issued, fully paid and nonassessable.

7.With respect to the Aspire Shares, (i) when issued and paid for in accordance with the Aspire Purchase Agreement and as provided in the Aspire Prospectus, and (ii) upon either (a) the countersigning of the certificate representing the Aspire Shares by a duly authorized signatory of the Company’s registrar for Common Stock or (b) the book entry of such shares by the transfer agent for the Common Stock, the Aspire Shares will be validly issued, fully paid and nonassessable.

are subject to (i) the effect of applicable bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium and similar laws affecting the enforcement of creditors’ rights generally, (ii) the effect of general principles of equity (regardless of whether considered in a proceeding in equity or at law), which may, among other things, deny rights of specific performance, and (iii) public policy considerations that may limit the rights of parties to obtain certain remedies.

We express no opinion with respect to (a) any provision for liquidated damages, default interest, late charges, monetary penalties, make-whole premiums or other economic remedies to the extent deemed to constitute a penalty, (b) any provision permitting, upon acceleration of any Debt Securities, collection of that portion of the stated principal amount thereof which might be determined to constitute unearned interest thereon, (c) any proxy, power or trust, (d) any provision for exclusivity, election or cumulation of rights or remedies, (e) any provision purporting to authorize a party to act in its sole discretion or to provide that determination by a party is conclusive, (f) any waiver of claims, defenses, rights granted by law, notice, opportunity for hearing, evidentiary requirements, statutes of limitation, trial by jury or other procedural rights, (g) any provision requiring payment of attorneys’ fees, (h) any provision for the indemnification of or contribution to a party with respect to a liability where such indemnification or contribution is contrary to applicable law or public policy, (i) any grant of setoff rights, (j) any provision requiring waivers or amendments to be made only in writing, (k) any provision prohibiting, restricting or requiring consent to the assignment or transfer of any right or property, (l) any consent to, or restriction upon, governing law, jurisdiction of courts, venue of actions, means of service of process, arbitration or judicial relief, (m) any provision regarding severability, and (n) any provision to the extent it requires that a claim with respect to a security denominated other than in U.S. dollars (or a judgment in respect of such a claim) be converted into U.S. dollars at a rate of exchange at a particular date, to the extent applicable law otherwise provides.

The opinions expressed herein are limited to matters governed by the Delaware General Corporation Law and, as to the Debt Securities, Shelf Warrants and Units constituting valid and binding obligations of the Company, the laws of the State of New York, and no opinion is expressed herein as to the laws of any other jurisdiction. Opinions involving matters arising under the laws of the State of New York are given by lawyers in our firm who are licensed to practice in that jurisdiction. The opinions expressed herein do not extend to compliance with federal or state securities laws relating to the offer or sale of the Securities, the Warrant Exercise Shares or the Aspire Shares, and we express no opinion with respect to any law, rule or regulation that is applicable to any party to any Indenture, Purchase Agreement, Warrant Agreement, Unit Agreement, the Outstanding Warrants or the Aspire Purchase Agreement, or to the transactions contemplated thereby, solely because such law, rule or regulation is part of a regulatory regime applicable as a result of the specific assets or business operations of any such party.

We hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to all references to us in the Registration Statement and any amendment thereto. Such consent shall not be deemed to be an admission that our firm is within the category of persons whose consent is required under Section 7 of the Act or the regulations promulgated pursuant to the Act.



SMITH, ANDERSON, BLOUNT, DORSETT,
MITCHELL & JERNIGAN, L.L.P.

/s/ Smith, Anderson, Blount, Dorsett,
Mitchell & Jernigan, L.L.P.